Category: Copyright

Dr. King & the Public Domain

Every time a Martin Luther King anniversary comes around, the anti-copyright armada is well armed with blogs and articles decrying the indecency that the civil rights leader’s words and recordings are not in the public domain.  And never one to miss such an opportunity, even while missing the point, Mike Masnick at Techdirt insists that Dr. King’s “I Have a Dream” speech should no longer be protected by copyright controlled by the King estate.

You know the speech, right?  Who doesn’t?  We celebrated it’s 50th anniversary yesterday, and it’s only one of the most famous pieces of oratory in world history.  Yet, despite the fact that Dr. King’s words managed to attain osmotic universality long before the invention of YouTube, one gets the idea from reading Masnick’s post that without “sharing” the speech through social media, it might simply vanish into oblivion.

I understand the sentiment.  After all, these words feel like public property, and they were among the many gifts King gave to humanity.  So, is it really fair that the King family can manage or even license this speech and “sully” its legacy with money?  It is.  And the primary reason should be obvious:  because YouTube doesn’t belong to the people, it belongs to Google; and Google monetizes every click. That means Masnick’s idealistic musings that sound humanistic are already sullied with money, except that in his world, the money would be Google’s, and the King family would get zip.  How is that more fair or better serving the public interest?

The internet industry has done such a thorough job of telling people that the web belongs to all of us, we actually believe it.  Masnick’s title “Let Freedom Ka-Ching” is admittedly clever, but it’s also hypocritical.  He mocks the tawdry commercialism of licensing King’s emancipating words for use as a ringtone and cites Professor Boyle of Duke University, who also mocks such use; but why is the alternative better?  If I made an homage mash-up that earned millions of views on YouTube, why would it be any less tawdry for Google to advertise fast food against it?  Go a step further:  what if a white-supremacist group creates a racist mash-up with the speech that generates millions of views, and Google sells ads against that? The King family would be powerless to do anything about it, and Google would keep the video online because it’s “free speech.”  Ka-ching!

We keep forgetting that copyright is often about preserving the integrity of works, and not just about money. Estates have long played the role of curators who protect the legacy of authors’ works, and we dismiss the value of this at our peril, even as we mock the idea of “I Have a Dream” as a ringtone. I happen to think a ringtone is not a bad use as uses go, but that’s another conversation.

The web moves fast, it favors what “trends” and not necessarily what endures.  There is no evidence to suggest that my fellow Americans are any more enlightened or have more ardently embraced the goals of the civil rights movement because of social media and so much jittery sharing of things.  Worse yet, can we say for certain that a generation or two from now, the legacy of King would not be mangled through reuse beyond all recognition?  The answer is no we can’t say that for certain because we’re making assumptions based on technologies and social trends that are less than a decade old.  And we have seen plenty of evidence that what goes viral is not always accurate or valuable.

I for one think Martin Luther King, Jr. already gave us plenty; and access to his works is anything but limited.  You might have to get off your butt and go to the library, but considering how far he walked, that doesn’t seem like a lot to ask.

Are we sure copyright isn’t part of the future?

You know how you can tell a social or political point of view is losing ground?  When the crazy stuff bubbles to the surface.   Here in the U.S., for example, the GOP is floundering because it has a bit of a crazy people problem.  Intelligent conservatives remain frustrated by the headline-making loons in their party who don’t realize the sexual revolution already happened.  I certainly do a spit-take just like millions of others when I read about yet another politician who wants to make gayness illegal or roll back the rights of women to the dark ages, but I temper my own reaction with the faith that at least some of this righteous regressiveness is due to the disintegration of a dying element in our politics, just fading voices trying to be heard against the tidal wave of history.  Interestingly, the anti-copyright crowd would have you believe the same thing about those of us who speak out in defense of this body of law — that we are the ones clinging to a set of old values and methodologies while the future moves inexorably away from our world view because we don’t realize the digital revolution already happened.  But even a casual sampling of observations suggests to me that it is the presumptive revolutionaries on these matters whose positions are fizzling like an unstable isotope.

Speaking broadly, I’ve been paying close attention to this debate for just about two years, and it was this time last year that I started writing and hosting this blog.  Regarding copyright, it’s clear that the largest plank in the anti platform is the assertion that this system of laws stifles innovation.  Yet, despite the constant repetition of this particular thesis, I have yet to encounter one solid example of some economy-growing innovation being asphyxiated by the alleged toxicity of copyright.  From talks and articles by the learned Mr. Lessig to the smart-aleck drumbeat of Techdirt to the un-researched RSC memo of Derek Khanna to even the testimony of innovators last week before the House Judiciary Committee, nobody has presented any tangible examples of the untapped opportunities we are failing to exploit to the benefit of our prosperity.  I keep listening for a solid example, and I would not write in opposition if I heard one. After all, I have kids who need jobs in the future; and I no more wish to protect irrelevant, economically untenable, legal systems than I want my daughter growing up in a society without rights for women.  But after two years of listening, I got nothin’.

And not unlike the minutia-madness exhibited by factions of the contemporary GOP, we seem to be witnessing a lot of desperate scrambling these days among copyright’s antagonists; and it is interesting to watch some of the wheels come off just as we head into Fall and a comprehensive review of the law.  At one extreme we have Rick Falkvinge, founder of the European Pirate Party, sounding in this recent article like the black knight from Monty Python’s Holy Grail, proclaiming victory within his grasp despite having all four limbs hacked off.  To quote musician/journalist Helienne Lindvall, “As a Swede living in the UK, I can tell you how little influence the Pirate Party has in either country. Sure, they had a perfect storm back in 2009, when the Pirate Bay trial coincided with the election for the EU Parliament, managing to get two reps elected. But in the general election the following year the party got 0.65% of the vote, so has no representatives at all in the parliament/riksdag. They still feature in media debates on copyright – after all, a little controversy increases viewer numbers – but are largely viewed as a sideshow.”

Two posts ago, I wrote about the strange macro-economics of CCIA lobbyist Matt Schruers making the astonishingly facile argument that money not spent on media still goes into the economy somewhere.  And this week, Mr. Schruers offers this report stating that search engines (i.e. Google) actually contribute very little to pirate website traffic, whence we are meant to draw the conclusion that “disappearing” search results is unlikely to have a substantial effect on infringement because most users intent on finding illegal media already know where they’re going. Aside from substantiating a generalization that seems intuitive, the report indicates that, for example, a mere 8% of traffic to The Pirate Bay comes from a Google search. It’s worth noting, though, that if this number is accurate, that’s still about 240 million page views for the largest infringing site in the world. (See also VoxIndie’s analysis of this report.)

But in the scheme of what we’re talking about, does it matter if search is responsible for 8, 15, or 30 percent of traffic to TPB when the funding industry behind the study is responsible for 100% of the PR messages that tell users media piracy is socially beneficial, and copyright is irrelevant in the digital age? Or when that funding industry profits from said traffic no matter how it travels? Because I’m pretty sure U.S. companies are supposed to be 0% responsible for supporting or profiting from illegal markets, so I personally find studies like these and the not-so-investigative journalism they spawn to be exactly the kind of distraction they’re designed to be.  It’s lobbyist hairsplitting reminiscent of the political spin used by interests who are skating on rather thin ice — and probably in the wrong direction.

Photo by caitlin_w
Photo by caitlin_w

After two years of paying close attention to these matters, I can say that both anecdotal and studied evidence suggests that most of the general public and leaders in the U.S. and abroad still support creator and author rights. In fact, very few outspoken antagonists of copyright can even bring themselves to openly say that creator rights are unimportant.  This makes sense given the likelihood that anywhere from 30 to 50% of the people you know are rights holders or direct beneficiaries of intellectual property.  As outspoken and unapologetic as musician David Lowery has been on these issues, his bands Camper Van Beethoven and Cracker have actually seen an increase in their fan base and overall support.  Chris Ruen, in his book Freeloading, states that nearly everyone he speaks to about the ills of freely downloading music come to understand the mechanics at play and to sympathize with the musicians being harmed.  In late July, the American Consumer Institute released a report indicating that 90% of Americans support and understand the value of intellectual property rights.  And just last week, US Commerce Secretary Penny Pritzker announced during a presidential visit to Music Row in Nashville, “Instead of viewing a new album as an expense to our economy, we now view it as an asset, because it supports jobs and generates revenue for years to come.”  This was in reference to a recent change in how we calculate GDP to reflect innovation, R&D, and the creation of “multiple types of intellectual property” like movies, books, music, and television.

This is where the real conversation is going.  So, it’s little surprise to see the anti-copyright crowd grasping at so many flimsy straws.

Copyright and the Creative Process

Ring toss

On July 4th, I announced that I’m rebooting a project that began as a short film in the summer of 2011.  goneElvis is a portrait depicting a day in the life of a female veteran of the Iraq War who is homeless and suffers from PTSD.  As stated in the new post on the film’s website, there are things I like about the short and things I don’t, but I have decided the subject still warrants a fresh approach, probably as a series, and that I have initiated collaboration with some colleagues to begin anew.  I mention the project because its production includes a very common experience in the creative process that contradicts many of the complaints one hears about copyrights stifling new creative or derivative works.  Most often, these criticisms come from people who are not engaged in any creative process, which is why they fail to understand that particularly with art, obstacles can be opportunities at least as often as they are barriers.  In fact, as an aside, I have long felt that one of the reasons many major motion pictures have become so emotionally flat is that the big-money movies are over-produced. When creators can afford to do everything exactly as planned, this removes some of the magic that comes from quick-witted solutions to various limitations.  Any student of film history knows that some of the most highly-praised cinematic moments are the result of off-the-cuff workarounds to technical, financial, or logistical challenges.

While planning the production of goneElvis, I wanted to use my friend Martin Ruby’s cover of “Tonight’s the Night,” famously recorded by The Shirelles, but I was turned down by the publishers when I requested the license for which I could not of course pay.  It seems the tendency these days is to view this kind of obstacle as unfair or muting the creative process of the next generation; but this attitude is a mistake, and I’d venture that almost any serious artist will agree.  Because I couldn’t have what I thought I wanted in the first place, I ended up with something much better simply because I was forced to go look for it.  In this case, I began by searching songs in the public domain, and when I came across the Mexican standard Cielito Lindo (you know the one with the refrain Ay, Ay, Ay, Ay), I got goosebumps imagining what Martin Ruby might do with it translated into English.  Although normally sung at a bright tempo by mariachi bands, Cielito Lindo is fundamentally a lullaby, which immediately resonates because the protagonist in the film clings to the hope of finding the daughter she lost when her husband abandoned her while she was in Iraq.  Knowing that Ruby grapples with his own challenges as a single father of a young daughter, I imagined his rendition of this song might produce something very haunting.  It did.  Instead of a bittersweet cover of a love song, we had a piece of highly-original music that is thematically perfect for the film. Suddenly, my little low-budget short didn’t have a borrowed song — it had a soundtrack.

Any artist lives in a world of obstacles — financial, logistical, legal, and hardest of all, internal.  Very often, it is the obstacles that define both the artist and the work; and I doubt there is a creator in any medium who has not benefitted from producing something he or she never anticipated at the start of a process.  In fact, I would go so far as to generalize that all creators find ways to balance the planned part of the process while leaving ample room for the unexpected. It is this aspect of creative work that is so hard to explain to those who don’t do it, but it is also true that the best results are usually a fortunate harmony of experience, expertise, and inexplicable instinct.  In other words, as a mathematical exercise, there are so many elements that must align to produce something good that it’s almost absurd to predict that any one obstacle might be either harmful or beneficial to the end result. Hence, there is no more reason to identify existing copyrights as stifling creativity any more than it would be reasonable to complain about the vicissitudes of weather.  In fact, speaking of weather, the scene with the police officer depicted in the embedded clip wasn’t written or blocked for rain, and the rain we got forced me to shoot the entire scene from inside the car with available light. Operating a heavy camera, hand-held on a sultry, rainy night in the front seat of a Cutlass is not a set of conditions I would have chosen, but the resulting scene is more dramatic than what I had planned on paper.  But that’s just filmmaking. It’s the norm.

Beyond the myriad reasons why copyrights cannot be viewed generally to stifle the creative process, they also must be understood to support the creative process with regard to the same unpredictable nature to which I refer.  Nearly any artist one listens to or reads about will describe variations on the theme of organizing one’s life to allow the work to happen, and each artist requires different conditions — from asceticism to utter chaos — to foster his or her own productivity.  With successful works, the passive income derived from copyrights, is the means by which artists are able to reinvest in a career based so precariously on the unknown.